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1994

Robert Mabey, Pacific Management v. Stanley L.Wade, Janet B. Wade : Brief of AppellantUtah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.M. Shane Smith; Budge W. Call; Smith & Hanna; Attorneys for Plaintiff and Appellant.Daniel A. Stanton; Aron Stanton, P.C.; Attorney for Defendants and Appellees.

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Recommended CitationBrief of Appellant, Robert Mabey, Pacific Management v. Stanley L. Wade, Janet B. Wade, No. 940458 (Utah Court of Appeals, 1994).https://digitalcommons.law.byu.edu/byu_ca1/6114

IN THE UTAH COURT OF APPEALS

ROBERT MABEY d/b/a PACIFIC MANAGEMENT,

Plaintiff and Appellant,

vs.

STANLEY L. WADE and JANET B. WADE,

Defendants and Appellees.

BRIEF OF THE APPELLANT

Appeal NO. 940458-CA

Priority No. 15

APPELLANT'S OPENING BRIEF

THIS IS AN APPEAL FROM THE FINAL ORDER OF THIRD CIRCUIT COURT JUDGE, DENNIS FUCHS, DATED JUNE 6, 1994, WHEREIN APPELLANT WAS DENIED ATTORNEYS' FEES AFTER SUCCESSFULLY DEFENDING APPELLEES' MOTION TO SET ASIDE A JUDGMENT.

DANIEL A. STANTON ARON STANTON, P.C. 2035 East 3300 South, # 314 Salt Lake City, Utah 84109 (801) 266-8923

Attorneys for Defendants and Appellees.

M. SHANE SMITH BUDGE W. CALL SMITH & HANNA 311 South State, Suite 450 Salt Lake City, Utah 84111 (801) 521-8900

Attorneys for Plaintiff and Appellant.

UTAH COURT OF APPEALS BfllEF

io

FILED FEB - 8 1995

COURT OF APPEALS

IN THE UTAH COURT OF APPEALS

ROBERT MABEY d/b/a PACIFIC MANAGEMENT,

Plaintiff and Appellant,

vs.

STANLEY L. WADE and JANET B. WADE,

Defendants and Appellees.

BRIEF OF THE APPELLANT

Appeal No. 940458-CA

Priority No. 15

APPELLANT'S OPENING BRIEF

THIS IS AN APPEAL FROM THE FINAL ORDER OF THIRD CIRCUIT COURT JUDGE, DENNIS FUCHS, DATED JUNE 6, 1994, WHEREIN APPELLANT WAS DENIED ATTORNEYS' FEES AFTER SUCCESSFULLY DEFENDING APPELLEES' MOTION TO SET ASIDE A JUDGMENT.

DANIEL A. STANTON ARON STANTON, P.C. 2035 East 3300 South, # 314 Salt Lake City, Utah 84109 (801) 266-8923

M. SHANE SMITH BUDGE W. CALL SMITH & HANNA 311 South State, Suite 450 Salt Lake City, Utah 84111 (801) 521-8900

Attorneys for Defendants and Appellees.

Attorneys for Plaintiff and Appellant.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii

STATEMENT OF JURISDICTION 1

STATEMENT OF ISSUES FOR REVIEW 1

STANDARD OF REVIEW 2

PRESERVATION OF ISSUES FOR REVIEW 2

STATEMENT OF THE CASE 3

Nature of the case 3

Statement of the Facts 3

SUMMARY OF THE ARGUMENT 5

ARGUMENT

MABEY IS ENTITLED TO ATTORNEYS' FEES UNDER THE CONTRACT BETWEEN THE PARTIES 5

MABEY IS ENTITLED TO ATTORNEYS' FEES UNDER THE NOVEMBER 22, 1993, JUDGMENT 7

MABEY IS ENTITLED TO ATTORNEYS' FEES INCURRED

ON THIS APPEAL 8

CONCLUSION 9

ADDENDUM 10 Exhibit A Stipulation Regarding Transcript and

Certification of Transcription.

Exhibit B Judgment dated November 22, 1993.

Exhibit C Judgment dated June 6, 1994.

Exhibit D Contract between parties providing for collection costs, court costs and reasonable attorneys' fees.

i

TABLE OF AUTHORITIES

Cases

Brown v, Richards. 840 P.2d 143 (Utah App. 1992) 8

Cable Marine, Inc. v. M/V Trust Me II, 632 F.2d 1344

(5th Cir. 1980) 6

Cabrera v. Cottrell, 694 P.2d 622, 625 (Utah 1985). . . . 2,6,7

Cobabe v. Crawford. 780 P.2d 834, 836 (Utah App. 1989). . . 6,8

Dixie State Bank v. Bracken. 764 P.2d 985 (Utah 1988) . . . . 2

Estate for Schmidt v. Downs. 775 P.2d 427, 431

(Utah App. 1989) 8

Jenkins v. Bailey, 676 P.2d 391, 393 (Utah 1984) 8

Management Servs. v. Development Assocs..

617 P.2d 406, 408-09 (Utah 1980) 8

Saunders v. Sharp, 793 P.2d 927 (Utah App. 1990) 2

Spinks v. Cheveron Oil Co.. 507 F.2d 216, 226 (5th Cir. 1975) 6 Stacey Properties v. Wixen. 766 P.2d 1080, 1085 (Utah App. 1988) 5 United States v. Mountain States Construction Co..

588 F.2d 259 (9th Cir. 1978) 6

Statutes

Utah Code Ann. § 78-2a-3 (2) (d) 1

ii

STATEMENT OF JURISDICTION

The Court of Appeals has jurisdiction to hear this appeal

from the Third Circuit Court, Salt Lake County, State of Utah,

under Utah Code Ann. § 78-2a-3(2)(d).

STATEMENT OF ISSUES FOR REVIEW

1. Did the trial court err in denying plaintiff and

appellant (hereinafter "Mabey") his attorneys' fees incurred in

protecting the November 22, 1993 Judgment from the Motion to Set

Aside, filed by the defendants and appellees (hereinafter "Wade")

when the underlying November 22nd Judgment is based on a contract,

which unequivocally provides for all resulting collection costs,

court costs and reasonable attorneys fees.

2. Did the trial court err in denying Mabey's request

for attorneys' fees incurred in protecting the November 22, 1993

Judgment from Wade's Motion to Set Aside the Judgment, when the

November 22nd Judgment specifically provides that, "this judgment

shall be augmented in the amount of reasonable costs and attorneys'

fees expended in collecting said judgment by execution or other­

wise" .

3. Did the trial court err in denying Mabey's request

for attorneys' fees, after finding that Mabey was legally entitled

to the fees, but no fees would be awarded because the Motion to Set

Aside was not brought in bad faith.

4. Is Mabey entitled to recover his attorneys' fees

incurred in bringing this appeal when there is an enforceable

contract providing for attorneys fees and when he has been awarded

- 1 -

attorneys7 fees in the underlying, November 22nd Judgment, which

Mabey was required to defend against the Motion to Set Aside.

STANDARD OF REVIEW

The interpretation of a contract to determine whether

attorneys' fees are allowed is a question of law which does not

require any deference by the appellate court. Saunders v. Sharp.

793 P.2d 927 (Utah App. 1990) . If the contract allows for

attorneys' fees, it is "legal error" to award less than a reason­

able fee to the successful litigant. Dixie State Bank v. Bracken.

764 P.2d 985 (Utah 1988). Cf. Cabrera v. Cottrell. 694 P.2d 622,

625 (Utah 1985) (attorneys fees, when awarded as allowed by law,

are awarded as a matter of legal right).1 The appellate court

should review the contract de novo and no deference should be given

to the trial court.

PRESERVATION OF ISSUES FOR REVIEW

After the trial court ruled in Mabey's favor, denying

Wade's Motion to Set Aside the Judgment, Mabey requested his

attorneys' fees incurred in defending the Motion to Set Aside. The

trial court ruled that although Mabey had attorneys' fees on its

November 22, 1993 Judgment, and was probably legally entitled to

them on the Motion, the court was not going to award any attorneys

fees on the Motion. The issue of attorneys' fees on the Motion was

properly raised before the trial court and the court made a

specific ruling denying the request. (See Stipulation Regarding

Transcript and Certification of Transcription, Exhibit A).

- 2 -

STATEMENT OF THE CASE

Nature of the Case

This is an appeal from the final order of Third Circuit

Court, Judge Dennis Fuchs, dated June 6, 1994, (Addendum, Exhibit

C) denying a Rule 60(b)(1) Motion to Set Aside Judgment filed by

Wade to set aside the judgment entered against Wade on November 22,

1993, (Addendum, Exhibit B) . The November 22, 1993 Judgment

provides for attorneys fees based upon contract. Mabey in this

action is appealing the denial of his attorneys' fees incurred in

successfully defending against the Motion to Set Aside the November

22nd Judgment.

The Wades, as appellants, in another action, appealed the

denial of their Motion to Set Aside. The trial court's denial of

their Motion to Set Aside Judgment has been summarily affirmed by

this Court in the other action. (Appeal No. 940339-CA).

This Court also filed, sua sponte, a Motion for Summary

Disposition of this case, which was briefed by the parties.

However, on December 14, 1994, an order was entered denying summary

disposition of the case and it was set for briefing.

Statement of the Facts

1. Mabey and Wade entered into a written agreement

whereby Mabey would appeal the property valuation assessed by Salt

Lake County against certain property owned by Wade. If successful,

Mabey was to collect a fee equal to 1/2 of the tax savings.

2. Mabey filed the appeal with the appropriate tax

authorities and obtained a $4,924.30 tax reduction for Wade on

- 3 -

certain properties. Wade refused to pay Mabey the $2,462.15 fee

previously agreed to by Wade.

3. The written agreement entered into between Mabey and

Wades provides that, "In the event of non-payment, Client [Wade]

agrees to pay all resulting collection cost, court cost and

reasonable attorney fees." (A copy of the contract is attached as

Exhibit D).

4. Mabey brought suit against Wade in Third Circuit

Court to collect his fee. Mabey obtained a judgment on November

22, 1993, when Wade failed to appear for trial. The November 22nd

judgment includes an award of $2,405.00 for attorney fees incurred.

(See November 22, 1993, Judgment, attached as Exhibit B).

5. Wade subsequently sought to set aside the November

22, 1993, Judgment by filing a Rule 60(b)(1) Motion to Set Aside,

but was unsuccessful. (See June 6, 1994, Judgment, attached as

Exhibit C) .

6. Mabey at the hearing on Wade's Motion to Set Aside,

requested his attorney fees for successfully defending against

Wade's Motion to Set Aside the November 22nd Judgment, but his

request was denied, the trial court stated:

I am not going to award any fees on the motion. OK, You have your judgment and you have your fees in your judgment, but I'm not going to award any additional fees. I think that even though you're probably entitled to them, I think the motion was brought in good faith, even though I'm denying it, so I'm not going to award any additional fees. (See Transcript, attached as Exhibit A) .

- 4 -

SUMMARY OF THE ARGUMENT

Mabey is entitled to his attorneys' fees on defending the

Motion for Set Aside for a number of reasons: (1) There is a

contract between the parties which unequivocally provides for

Mabey's reasonable attorneys' fees; and (2) The underlying Judgment

provides for Mabey's attorneys' fees incurred in the collection of

said judgment by execution or otherwise,

Mabey is also entitled to his attorneys' fees incurred in

this appeal as: (1) there is a contract providing for them; (2) he

was awarded his attorneys' fees on the underlying Judgment, dated

November 22, 1993; and (3) the issues on the Motion to Set Aside

and resulting appeal, dealt with the judicial enforcement of the

contract•

ARGUMENT

I. MABEY IS ENTITLED TO ATTORNEYS' FEES UNDER THE CONTRACT BETWEEN THE PARTIES.

Mabey is entitled to his attorneys fees under paragraph

3 of the contract with Wade. (Addendum, Exhibit D). This is what

the trial court found and ordered in entering the November 22nd

Judgment. (Addendum, Exhibit B).

Since there is a contract providing for attorneys fees,

the trial court erred in not awarding Mabey his attorneys fees in

successfully defending the Motion to Set Aside his Judgment. The

long standing premise is that "provisions in written contracts

providing for payment of attorneys fees should ordinarily be

honored by the courts." Stacey Properties v. Wixen. 766 P.2d 1080,

1085 (Utah App. 1988).

- 5 -

The Utah Supreme Court has stated that, "contrary to the

contention that attorneys fees should be determined on the basis of

an equitable standard, attorneys fees, when awarded as allowed by

law, are awarded as a matter of legal right." Cabrera v. Cottrell,

694 P.2d 622, 625 (Utah 1985). "Since the right is contractual,

the court does not possess the same equitable discretion to deny

attorneys fees that it has when fashioning equitable remedies, or

applying a statute which allows the discretionary award of such

fees." Cobabe v. Crawford. 780 P.2d 834, 836 (Utah App. 1989),

citing Spinks v. Cheveron Oil Co., 507 F.2d 216, 226 (5th Cir.

1975). The November 22nd Judgment is based on a contract with a

specific provision for the award of attorneys fees. Mabey is

entitled to this attorneys fees as a matter of law, and the trial

court erred in denying his attorneys fees.

There have been only a few cases, in extraordinary

situations, where court's have declined to award attorneys fees to

a prevailing party, in spite of an enforceable contractual provi­

sion. Such cases have been when both parties have acted improperly

under the terms of the contract, United States v. Mountain States

Construction Co.. 588 F.2d 259 (9th Cir. 1978) (prevailing party

partly at fault for the termination of the contract); or when the

prevailing party has acted improperly and in bad faith, Cable

Marine, Inc. v. M/V Trust Me II, 632 F.2d 1344 (5th Cir. 1980)

(prevailing party acted unreasonable and incurred needless expense

by pursing suit after unreasonable refusal of two generous offers

of settlement). There are no such circumstances in this case.

- 6 -

The trial court refused to award attorneys fees on the

grounds that the Motion to Set Aside was not brought in bad faith.

This is not enough to deny attorneys fees to the prevailing party

when there is a contract providing for them.

The prevailing party in this case did not act in bad

faith or improperly. There is no reason, and no legal precedence,

for a court to refuse to award attorneys fees to the prevailing

party when there is an enforceable contract, simply because the

opposing side may not have acted in bad faith. This issue rather,

deals with the court's discretionary right under statute to award

attorneys fees. In this case there is a contract and Mabey is

entitled to his attorneys fees under contract as a matter of law.

II. MABEY IS ENTITLED TO ATTORNEYS' FEES UNDER THE NOVEMBER 22nd JUDGMENT ENTERED BY THE COURT.

The trial court awarded Mabey his attorneys fees in the

November 22nd Judgment that Wade unsuccessfully attempted to set

aside. The November 22nd Judgment states that, "this judgment

shall be augmented in the amount of reasonable costs and attorney's

fees expended in collecting said judgment by execution or other­

wise" .

The Utah Supreme Court has held that attorneys fees

rendered in the successful defense of a claim, is the same as if

arising out of an action to enforce the contract. Cabrera v.

Cottrell, 694 P.2d 622, 625 (Utah 1985). The trial court denied

the Motion to Set Aside, therefore, Mabey was successful in

- 7 -

defending his Judgment and should be entitled to his attorneys fees

as an expense in enforcing and collecting on the Judgment.

III. MABEY IS ENTITLED TO ATTORNEYS' FEES INCURRED ON THIS APPEAL.

The general rule is that, when a party who received

attorney fees below prevails on appeal, the party is also entitled

to fees reasonably incurred on appeal. Brown v. Richards, 840 P.2d

143, 156 (Utah App. 1992) citing Management Servs. v. Development

Assocs.. 617 P.2d 406, 408-09 (Utah 1980). The trial court awarded

Mabey his legal fees in the November 22 Judgment that Wade

unsuccessfully attempted to set aside. Inasmuch as Mabey prevailed

in defending his November 22nd Judgment against Wade, wherein he

was awarded his attorneys fees, he is now entitled to his legal

fees on appeal. Cobabe v. Crawford, 780 P.2d 834 (Utah App. 1989)

Furthermore, as argued above, Mabey is also entitled to

his attorneys fees in defending Wade's Motion to Set Aside the

November 22nd Judgment; therefore, attorneys fees are to be awarded

on this appeal. Cobabe v. Crawford. 780 P.2d 834 (Utah App. 1989) ;

Jenkins v. Bailey. 676 P.2d 391, 393 (Utah 1984); Estate for

Schmidt v. Downs. 775 P.2d 427, 431 (Utah App. 1989).

CONCLUSION

There is an enforceable contract providing for the award

of attorneys fees. In the November 22nd Judgment, the trial court

properly awarded Mabey his attorneys fees pursuant to the contract.

- 8 -

In defeating Wade's Motion to Set Aside the November 22nd

Judgment, Mabey incurred legal fees in successfully enforcing the

contract and thus, is entitled to attorneys fees in defending the

Motion. Since Mabey is entitled to his attorneys fees in the

November 22nd Judgment and in successfully defending the Motion to

Set Aside, he is entitled to attorneys fees incurred on this

appeal.

DATED this £T May of February, 1995,

SMITH & HANNA

A By; /// ^f/UtCt^.

M. /Shane Smith''

- 9 -

ADDENDUM

Exhibit A Stipulation Regarding Transcript and Certification of Transcription.

Exhibit B Judgment dated November 22, 1993.

Exhibit C Judgment dated June 6, 1994.

Exhibit D Contract between parties providing for collection costs, court costs and reasonable attorneys' fees.

- 10 -

CERTIFICATE OF MAILING

I hereby certify on the m. day of February, 1995, two true and correct copies of the foregoing BRIEF OF APPELLANT was

mailed first class, postage prepaid, to the following:

DANIEL A. STANTON ARON STANTON, P.C. 2035 East 3300 South, # 314 Salt Lake City, Utah 84109 (801) 266-8923

Attorneys for Defendants and Appellees.

BWCIBREIF.PA1

• i l l -

Tab A

M. Shane Smith (3007) Douglas R. Short (5344) SMITH & HANNA, P.C. Attorneys for Plaintiff 311 South State Street, Suite 450 Salt Lake City, Utah 84111 Telephone (801) 521-8900

IN THE COURT OF APPEALS, STATE OF UTAH

ROBERT MABEY d/b/a PACIFIC : STIPULATION MANAGEMENT, REGARDING

: TRANSCRIPTION Appellant,

vs.

STANLEY L. WADE and JANET B. WADE, Appeal No. 940458-CA

Appellees.

Appellant, Robert Mabey, by and through his attorneys, M.

Shane Smith and Douglas R. Short of Smith & Hanna, and Appellees

Stanley and Janet Wade, by and through their attorney of record

Daniel Stanton, stipulate that the following partial transcription

may be accepted by the court as the official transcription of the

trial court's ruling on the question of additional attorney fees:

COURT; I am not going to award any fees on the motion. OK, You have your judgment and you have your fees in your judgment, but I'm not going to award any additional fees. I think that even though you're probably entitled to them, I think the motion was brought in good faith, even though I'm denying it, so I'm not going to award any additional fees.

The parties therefore move pursuant to Rule 11(e) (1) that

the forgoing be accepted by the Court as the official transcript.

This motion is accompanied by a certification by Douglas R. Short,

EXHIBIT

as the person who transcribed the forgoing transcription, that it

is true and correct.

DATED this ~2?\ day of November, 1994.

SMITH & HANNA

Douglas*-!*. Short

ARON STANTON

C ^

DRSWTNTRNSC PA1

- 2 -

n 8 SL±

M. Shane Smith (3007) Douglas R. Short (5344) SMITH Sc HANNA, P.C. Attorneys for Plaintiff 311 South State Street, Suite 450 Salt Lake City, Utah 84111 Telephone (801) 521-8900

IN THE COURT OF APPEALS, STATE OF UTAH

ROBERT MABEY d/b/a PACIFIC

MANAGEMENT,

Appellant,

vs.

STANLEY L. WADE and JANET B. WADE,

Appellees.

CERTIFICATE OF TRANSCRIPTION

Appeal No. 940458-CA

I, Douglas R. Short, Esq., do hereby certify that the

following passage is a true and correct transcription of the

relevant portion of the trial court's ruling rendered from the

bench on May 3, 1994, in this matter, and that said ruling was

transcribed from the official tape recording of the hearing, Tape

# 957, on deposit with the Third Circuit Court:

COURT: I am not going to award any fees on the motion. OK, You have your judgment and you have your fees in your judgment, but I'm not going to award any additional fees. I think that even though you're probably entitled to them, I think the motion was brought in good faith, even though I'm denying it, so I'm not going to award any additional fees.

DATED this 29 day of November, 1994.

SMITH & HANNA

By: ' ^"1/* ^^sreugla^ R. Short

ORSWTNTRNSC.PAI

TabB

Charles W. Hanna (1326) M. Shane Smith (3007) SMITH & HANNA, P.C. Attorneys for Plaintiff 311 South State, Suite 450 Salt Lake City, Utah 84111 Telephone: (801) 521-8900

IN THE THIRD CIRCUIT COURT, STATE OF UTAH

SALT LAKE COUNTY, SALT LAKE CITY DEPARTMENT

ROBERT MABEY d/b/a PACIFIC ! MANAGEMENT,

Plaintiff,

vs.

STANLEY L. WADE and JANET B. WADE,

Defendants.

1 JUDGMENT

Civil No. 920012860CV • Judge Fuchs

This matter having come before the Court at the time

regularly set for trial on the 3rd of November, 1993, at the hour

of 9:30 a.m., before the Honorable Dennis Fuchs, Judge, Plaintiff

being present and represented by counsel, M. Shane Smith of Smith

& Hanna, Defendants, Stanley L. Wade and Janet B. Wade, failing to

appear and no one appearing as counsel, the Court having waited in

excess of 15 minutes for Defendants' appearance and noting that

notice had been delivered to James I. Watts, attorney of record, of

the date, time and place set for trial, the Court having reviewed

the file and record in this matter and good cause appearing

therefore,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

1. Defendants' answer is stricken and judgment is

hereby entered against defendants, and each of them, in favor of

6XH1BVI

plaintiff, in the amount of $2,462.15, together with said plain­

tiff's costs and disbursements in the amount of $134.00, plus

interest prior to judgment at the rate of ten percent (10%) in the

amount of $1,165.71; further that attorney's fees be awarded to

plaintiff in the total amount of $2405.86, and that the total

amount of the judgment is and shall be $6033.72. It is further

ordered that this judgment shall be augmented in the amount of

reasonable costs and attorney's fees expended in collecting said

judgment by execution or otherwise as shall be established by

affidavit, and that pursuant to Section 15-1-4, Utah Code Anno.,

1953, as amended, interest accrue after judgment in the amount of

two points over the federal post judgment interest rate,

Judgment rendered this day of November, 1993.

BY THE COUHT^

MSSUU0G2J>A1

- 2 -

TabC

Kft? .'If

Charles W. Hanna (1326) M. Shane Smith (3007) SMITH & HANNA, P.C. Attorneys for Plaintiff 311 South State, Suite 450 Salt Lake City, Utah 84111 Telephone: (801) 521-8900

Vl/JY 0 7 f994

ThjrdCircuit Court bm U *« department

IN THE THIRD CIRCUIT COURT, STATE OF UTAH

SALT LAKE COUNTY, SALT LAKE CITY DEPARTMENT

ROBERT MABEY d/b/a PACIFIC MANAGEMENT,

Plaintiff,

vs.

STANLEY L. WADE and JANET B. WADE,

Defendants.

ORDER DENYZttG DEFENDANTS MOTION T0r SET ASIDE JUDGMENT

C^il No. 920012860CV ldge Fuchs

This matter having come before the Court at the time

regularly set for hearing on the 3rd of May 1994, at the hour of

8:30 a.m., before the Honorable Dennis Fuchs, Judge, M. Shane Smith

of Smith & Hanna, appearing on behalf of Plaintiff, and James I.

Watts, appearing for Defendants; and,

This matter having been presented to the Court by way of

written briefs, the Court having reviewed same and having heard

argument at length from respective counsel, the Court having

reviewed the record and file in this matter, and being fully

informed, and good cause appearing therefore,

j'$ EXHIBI

IT IS HEREBY ORDERED that defendants motion to set aside

the Judgment of November 22, 1993, is hereby denied, upon the

grounds and for the reasons propounded by plaintiff that defen­

dants' neglect was not excusable. J''*"\TZ^~

BY THfr' -

Mj?m

Date

2 -

/ / C

MAILING CERTIFICATE

I hereby certify on the day of May, 1994, a true

and correct copy of the foregoing MEMORANDUM IN OPPOSITION TO

DEFENDANT'S RENEWED MOTION TO SET ASIDE JUDGMENT was mailed first

class, postage pre-paid, to the following:

James I. Watts 124 South 600 East, Suite 100 Salt Lake City, UT 84102

MSSWR0ENY.PA1

3 -

>'?

TabD

This agreement is made between "PACIFIC MANAGEMENT CORPORATION" (hereafter PMC) and the Owner/s (hereafter Client) of the property noted herein. The property to be researched and appealed by PMC, is located: ~ 3 -** s~- • ~r- ••"' ' •

(property address) (city) (state) (zip)

The following Is agreed by both parties:

1. Client authorizes PMC to appeal the assessed valuation of above property before appropriate government entitles. If PMC determined that it may not be beneficial to appeal the Real Property taxes of property, PMC at their sole discretion, may elect not to proceed with the tax appeal.

2. Client agrees to pay PMC 50* of the first year savings In Real Property Taxes realized by appeal process. Client agrees to pay PMC upon written notice of the Tax reduction. Client empowers PMC or it's officers with limited power of attorney to act in behalf of client in all matters relating to the property tax appeal, direction of or disposition of refund, and or collection of any compensation due PMC,

3. Client agrees to hold PMC harmless of any action arising out of association with PMC. Client agrees to provide all requested documents. In the event of non-payment, Client agrees to pay all resulting collection cost, court cost and reasonable attorneys fees.

4. Client agrees to cooperate and provide any and all assistance, Information and documentation necessary for PMC to complete the tax appeal process, including copies of 1989 NOTICE OF PROPERTY VALUATION AND TAX CHANGE and CLOSING STATEMENT if property was purchased within the last year, and to complete the following section as it may apply by filling out the following: (please print) .

PACIFIC M A N A G E M E N T / ? D A T E ' ~" OWNER SIGNATURE >-A*

OWNER

CITY STATE ZIP

AREA TELEPHONE

APPROX. DATE PURCHASED EXHIBIT U PURCHASE PRICE

EAST 200 SOUTH. SUITE 650 SALT LAKE CITY, UTAH 84111 (801)532-2662